Tribunal decisions

The decision

IAC-AH-KEW-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/18781/2015
IA/18789/2015
IA/28814/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6th January 2017
On 6th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE I A M MURRAY

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mr Paa Adjei Nyanson (FIRST APPELLANT)
MASTER Kofi Obeng NYANSON (SECOND APPELLANT)
Akua Asamoah Tweneboah KODUAH (THIRD APPELLANT)
(ANONYMITY DIRECTION NOT MADE)
Respondents

Representation:

For the Appellant: Ms Ahmed, Home Office Presenting Officer
For the Respondents: Ms Reid, Counsel, for Perera & Co Solicitor, London

DECISION AND REASONS
1. The Appellant in these proceedings is the Secretary of State however for convenience I shall now refer to the parties as they were before the First-tier Tribunal.
2. The Appellants are citizens of Ghana born on 4th October 1982, 15th February 2008 and 3rd June 1981 respectively. The First and Third Appellants are the parents of the Second Appellant. They appealed against the decisions of the Respondent dated for the First and Second Appellants 7th May 2015 and for the Third Appellant 4th August 2015 refusing their applications for leave to remain in the United Kingdom under the Immigration Rules HC 395 as amended. Their appeals were heard by Judge of the First-tier Tribunal Sweet and allowed in a decision promulgated on 1st August 2016.
3. An application for permission to appeal was made and permission to appeal was granted by Judge of the First-tier Tribunal Grimmett on 24th November 2016. The permission states that the Respondent refused the applications for leave to remain under Appendix FM and paragraph 276ADE of the Immigration Rules and it is arguable that the judge erred when considering MA [2016] EWCA Civ 705 by relying on paragraphs 41 and 42 when at paragraph 45 it was concluded that the court should have regard to the conduct of the parents of a qualifying child when considering a grant of leave to remain in the UK..
4. There is a Rule 24 response on file. This response states that the judge has taken the correct approach to MA Pakistan. Paragraph 17 of that case is quoted. This refers to Section 117B(6) of the 2002 Act and the response states that if public interest does not require removal there is no other basis on which removal could be justified. Reference is made to interference in the right to private or family life under Article 8(1) which can only be justified where there is a sufficiently strong countervailing public interest falling within Article 8(2). The response then refers to paragraph 45 of the said case of MA which states that when considering the question of reasonableness under Section 117B(6) the only significance of Section 117B(6) is that where the seven year Rule is satisfied it is a factor of some weight leaning in favour of leave to remain being granted. The response goes on to state that the correct approach is to take account of the public interest when considering whether it is reasonable for a qualifying child to leave the UK but that strong countervailing reasons are required not to grant leave to remain where a child has accrued seven years' residence. The response states that when paragraph 22 of the decision in this case is read in its entirety that is what the judge has done. The judge noted paragraph 46 of MA and makes reference to the significant weight attached to seven years' residence by a child and the fact that the child in this case has put down roots and has developed social, cultural and educational links with the UK. Based on this the judge has concluded that the removal of the Second Appellant from the UK would not be reasonable. The response goes on to state that if this is not accepted and an error is found it is not a material error as strong factors are required to refuse leave to remain to a child who has resided in the UK for seven years but the judge has found no such factors in this case.
The Hearing
5. The Presenting Officer submitted that the basis of the judge's consideration of reasonableness is in paragraph 22 of his decision. She submitted that MA Pakistan has not been properly considered in this paragraph. The Presenting Officer referred to paragraph 45 of the said case of MA and submitted that this states that when reasonableness is considered and paragraph 117B(6) is taken into account public interest must be considered. This paragraph states that the only significance of Section 117B(6) is that where the seven year Rule is satisfied it is a factor of some weight leaning in favour of leave to remain being granted. At paragraph 114 of the said case of MA it is stated that with regard to the reasonableness test the judge requires to consider the immigration history and status of the parents.
6. The Presenting Officer submitted that based on the said case of MA and paragraph 42 thereof it is not putting blame on the child to say that the conduct of the parents should weigh on the scales when the general public interest in effective immigration control is under consideration. She submitted that everything requires to be considered. She submitted that the judge does not do that at paragraph 22 of his decision and in fact incorrectly states:
"The decision in MA concludes that there is no justification for reading the concept of reasonableness so as to include a consideration of the conduct and immigration history of the parents as part of an overall analysis of the public interest."
The Presenting Officer submitted that this is a misinterpretation of the case of MA and because of this misinterpretation the judge failed to look at the Second Appellant's parent's history although it was necessary for him to do so when making his decision on public interest. She submitted that had their history been taken into account the judge's decision might well have been different and this is a material error of law.
7. Counsel for the Appellant made her submissions referring to the Rule 24 response, at paragraphs 5(b) and 5(c). She submitted that what the judge has to decide is whether it would be reasonable for the child to go to Ghana with his parents and if the judge finds it to be reasonable then a decision has to be made as to whether the family should be removed. She submitted that one sentence in the judge's decision is an error but this cannot be read on its own, it has to be read with the rest of the paragraph and when paragraph 22 is read in full there is no material error.
8. She submitted that the Second Appellant was aged 7 when the application was made and aged 8 at the hearing. She submitted that 7 is the relevant age. The child speaks English and some Fanti and has engaged with the Ghanaian community in Enfield. She submitted that the judge looked at all the reasonable factors in this case and dealt properly with the case of MA Pakistan. The judge refers to Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 and refers to paragraph 46 of the case of MA which states that the fact that a child has been in the UK for seven years must be given significant weight when carrying out the proportionality exercise. She submitted that although the judge makes an error when he states that the conduct and immigration history of the parents should not be taken into account as part of an overall analysis of the public interest he goes on to correct this error by stating that significant weight has to be given to a child who has been in the United Kingdom for seven years.
9. Counsel submitted that the judge gave significant weight to this in his proportionality assessment and I was referred to the Home Office guidance about this which states that strong reasons need to be given for the removal of a child who has been in the United Kingdom for seven years, who is not British.
10. I asked Counsel if she accepts that the parent's conduct must be taken into account in the proportionality assessment and she said she does. That is what MA states.
11. The Presenting Officer submitted that the judge has erred when he refers to the conclusion in the case of MA Pakistan and he has misunderstood that case. She submitted that at paragraph 22 of the decision no reference is made to the history of Appellants numbers 1 and 3. She referred to paragraphs 20 and 21 of the decision in which Appellants 1 and 3's history is mentioned under the heading "Findings of Fact". The judge makes reference to discrepancies in the First and Third Appellants' evidence. She submitted however that when the judge deals with reasonableness at paragraph 22 there is no mention of the Second Appellant's parent's conduct in the United Kingdom and she submitted that paragraph 23 of the decision cannot be correct, particularly when the judge states "It follows therefore that the First and Third Appellants' appeals must also succeed." She submitted that the judge has not considered their history when reaching his conclusion, in particular the fact that the First Appellant has been illegally in the United Kingdom since 2000 and the Third Appellant has been in the United Kingdom illegally since 2005.
12. The Presenting Officer submitted that it is correct that strong reasons are needed for a child who has been in the United Kingdom for seven years to be removed and that the seven year period is significant but the judge has erred in his proportionality assessment by not taking into account the history of the child's parents.
13. Counsel for the Appellant submitted that the judge has taken the correct approach and there is no material error of law in the decision. Counsel however submitted that she has to accept that at paragraph 22, the child's parent's history has not been taken into account in the proportionality assessment, although it is clear from the remainder of the decision that he is aware of their history. She submitted that the history would not be sufficient to outweigh the child's seven year residence in the United Kingdom and that the decision should not be overturned.
Decision and Reasons
14. The judge in this case has dealt with the relevant Immigration Rules and has based his decision on the said case of MA Pakistan and Others but he has misinterpreted the conclusion in this case.
15. At paragraph 22 of the decision he states
"The decision in MA concludes that there is no justification for reading the concept of reasonableness so as to include a consideration of the conduct and immigration history of the parents as part of an overall analysis of the public interest."
This is not what the said case of MA states. When public interest is considered in a proportionality assessment the child's parents' conduct has to be taken into account. Paragraph 22 of the decision is the relevant paragraph and it is clear from this that when proportionality was dealt with by the judge the conduct of the child's parents was not taken into account.
16. I find that had the judge taken this into account his decision might have been different. The history might well be sufficient to outweigh the child's seven year residence in the UK. I find that this is a material error of law.
Notice of Decision

There is a material error of law in the decision of Judge Sweet promulgated on 1st August 2016 and this decision must be set aside.

No findings of the First-tier Tribunal can stand. Under Section 12(2)(b)(i) of the 2007 Act and Practice Statement 7.2 the nature and extent of judicial fact-finding necessary for the decision to be re-made is such that it is appropriate to remit the case to the First-tier Tribunal. The member of the First-tier Tribunal chosen to consider the case is not to include Judge Sweet.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge I A M Murray